Two months into its legal dispute with Gov. Neil Abercrombie, attorneys for the Hawaii teachers union appear to be less interested in making their own case and more interested in making the state look bad.
How that plays into the fundamental legal question before the board is murky. Do they even have a case of their own, or are they simply grilling the state’s own witnesses until they find something that sticks?
The Hawaii State Teachers Association filed a labor complaint against Hawaii in July after Abercrombie imposed a new contract on teachers on July 1, containing a 5 percent salary cut and an increase in health care costs. The union says the governor violated teachers’ rights by short-circuiting the collective bargaining process. Abercrombie says negotiations had reached an impasse and that the union rejected the state’s “last, best and final” offer.
The Hawaii Labor Relations Board began its hearing in the case on Aug. 10. So far, the hearing has spread over 11 days and HSTA attorney Herb Takahashi has examined only four witnesses — three of whom are high-level state officials named in the case. None of them are what litigators call “friendly” witnesses, or members of the union’s leadership and bargaining team. And none of them have helped outline or crystallize an affirmative case for HSTA.
The union’s full witness list is no less perplexing. Of the 60 witnesses HSTA plans to call, only 20 are “friendly.” The other 40 are state lawmakers, members of the state’s bargaining team and leaders of the public labor unions accused of conspiring with the governor against HSTA.
Compounding the strange order in which he is calling the witnesses is the strange manner in which Takahashi examines them. His questioning often takes no direct line, but is scattershot with no chronology or logic. The questions meander and are often redundant, evoking frustrated objections from the state’s attorney and impatient reprimands from Labor Relations Board Chairman Jim Nicholson.
And despite talking about wanting to hurry its case along, HSTA’s attorneys are dragging the case out so that even Nicholson has had to remind the other parties that it’s the union’s show and they can proceed as slowly as they like. Union lawyers insist they are available for only a limited number of days, and in fact on Thursday told the board that they would not be able to resume the hearing until Oct. 20 — because HSTA President Wil Okabe would be out of town. His name is on the witness list, and would have been a logical first witness, but so far his participation has been limited to sitting in the audience.
Earlier this month, an attorney for the University of Hawaii Professional Assembly, an intervenor in the case, asked if the board could speed the hearing process by setting the hearing dates and letting the parties involved in the case work around them. But Nicholson made it clear that HSTA determines its own pace and availability.
Takahashi doesn’t talk to reporters, he told Civil Beat, and so far has remained true to his word.
So why the lengthy, unfocused examinations of unfriendly witnesses?
Nobody knows what’s going on. Takahashi’s strategy — or lack of one — has become a favorite topic of chatter among local labor leaders.
Is HSTA trying to confuse and frustrate the state? Or is the union just punishing the other side for forcing a contract on the teachers? Sitting in the hearings, it’s evident that Takahashi has no regard for time. He keeps witnesses on the stand for days. And then he abruptly dismisses them. There seems to be no point to it all. Yet, three of the first four witnesses were key players during the negotiations that fell apart: Chief state negotiator Neil Dietz, Board of Education Chairman Don Horner and Board of Education member Jim Williams. Together, their testimony has taken up eight of the 11 days. (Dietz is expected to still be on the stand when the hearing resumes Oct. 20.)
Or has HSTA entered this legal dispute only to appease its members? They’re angry over pay cuts and the fact that they didn’t get a chance to vote on the contract. Union attorneys have provided no evidence to support the claim that Abercrombie discriminated against their members. So far, no compelling legal argument has emerged.
Instead, attorneys have tried a number of legal tactics, but they seem to have backfired. Requests for arbitration, complaints to the state Ethics Commission, and even a plea with the Supreme Court to force the labor board to make a quicker decision on the union’s request for relief from the July 1 pay cuts have all failed.
They’ve drawn a rebuke from the labor board when it ruled HSTA attorneys demonstrated a “reckless disregard for the truth” in their efforts to undermine the state’s attorney. Failed legal motions have further bogged down the proceedings. And chairman Nicholson makes little effort to hide his irritation as the days stretch into months with no resolution.
Whether the HSTA attorneys strategy is effective, or they’re simply discrediting themselves remains to be seen.
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